GERALD HARRIS, Complainant
STATE OF WISCONSIN, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter on September 2, 2005, affirming the department's Preliminary Determination, which dismissed the complainant's complaint claim that the respondent violated the Wisconsin Public Accommodation and Amusement Law by denying him the full and equal enjoyment of a place of public accommodation because of his race.
A notice regarding appeal rights attached to the ALJ's decision informed the parties that in order to obtain a review of the decision by the Labor and Industry Review Commission, a written petition "must be received" (emphasis in original) by the Equal Rights Division within 21 days from the date of the ALJ's decision, or the decision would become final. Accordingly, the last day on which a timely petition could be received was September 23, 2005. The complainant's petition was not received by the Division until October 7, 2005, making it 14 days late.
The commission's authority is limited to review of written petitions received by the Division within 21 days after a copy of the ALJ's decision is mailed to the last known address of the parties. Wis. Stat. § 106.52(4)(b); Wis. Admin. Code DWD § 221.22(2). The complainant's copy of the ALJ's decision was correctly mailed to his last known address. A copy of the ALJ's decision was also sent to the attorney last known to be the complainant's attorney of record.
The only exception in which a party's late petition for review may be considered by the commission is set forth in section 106.52(4)(b)2. This exception provides as follows:
". . . If the commission is satisfied that a respondent or complainant has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department."
Wis. Stat. § 106.52(4)(b)2.
The complainant states in his October 7 filed petition that he has been in jail for about a month and that he hasn't received any letters from the Division since he has been locked up. Further, he asserts that the reason he has not gotten in contact with the Division is because "my paper and your address was in lock-up. I just received your address from my lock-up property 10-4-05." In his October 7 petition the complainant provides an address where he can be reached while in jail.
The complainant's late petition may not be considered by the commission under the exception provided in Wis. Stat. § 106.52(4)(b)2. The language of the exception provided in section 106.52(4)(b)2 for consideration of late petitions is exactly the same as that stated in the Wisconsin Fair Employment Act, section 111.39(5)(b)("If the commission is satisfied that a respondent or complainant has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department.").
The commission has held under the Wisconsin Fair Employment Act that the reference to "exceptional delay" refers exclusively to exceptional delay in the receipt of a copy of any findings and order which is the responsibility of the Equal Rights Division. Lacy v. Briggs & Stratton (LIRC, 07/09/01). Exceptional delay in the receipt of a copy of a decision caused by factors external to the Equal Rights Division are not within the intendment of the statute. Id.
Accordingly, in the absence of a timely filed petition, the Labor and Industry Review Commission has no authority to review the decision of the administrative law judge and therefore issues the following:
Dated and mailed October 31, 2005
harrige . rpr : 125 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney John C. Dowling
Attorney Jeff Scott Olson
Gerald Harris
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uploaded 2005/11/04